Opinion
20-P-65
06-23-2021
ROBERT A. COSTANTINO v. JOHN LONARDO[1] & others.[2]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008) .
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This case is here for the second time, the first being plaintiff Robert A. Costantino's unsuccessful appeal from a judgment on the merits in the underlying Superior Court litigation. See Costantino v. Lonardo, 95 Mass.App.Ct. 1121 (2019). While that appeal was pending, the Executive Office of Health and Human Services (MassHealth) sought fees and costs from Costantino under G. L. c. 231, § 6F, and G. L. c. 118E, § 44. The trial judge then held an evidentiary hearing, and in February 2018 issued findings of fact and an order that MassHealth recover $63, 924 in attorney's fees under G. L. c. 231, § 6F (§ 6F), and $101, 064 in investigation costs under G. L. c. 118E, § 44 (§ 44). Judgment entered, and Costantino filed a single notice of appeal. A single justice of this court affirmed the § 6F award but did not address the § 44 award. Pursuant to G. L. c. 231, § 6G (§ 6G), Costantino appealed from the single justice's decision.
MassHealth (the Commonwealth's Medicaid program) is administered by an agency within the Massachusetts Executive Office of Health and Human Services. MassHealth was formerly known as the Division of Medical Assistance. We use "MassHealth" to refer to both the program and the agency.
Costantino seeks review of both the § 6F award and the § 44 award. Because the latter presents a somewhat involved jurisdictional question, we first address the relatively straightforward § 6F award.
1. § 6F award.
A party's entitlement to fees under § 6F requires, as relevant here, "a separate and distinct finding[] that all or substantially all of the claims . . . made by any party who was represented by counsel during most or all of the proceeding, were wholly insubstantial, frivolous and not advanced in good faith." G. L. c. 231, § 6F. An appeal from a party aggrieved by a trial judge's § 6F decision is heard by a single justice of this court under § 6G, and on appeal from the single justice's decision, "we review [her] decision only for abuse of discretion or other error of law." Fronk v. Fowler, 456 Mass. 317, 328 (2010). See Danger Records, Inc. v. Berger, 444 Mass. 1, 13 (2005).
Here, the trial court judge found that Costantino's and the other parties' "claims and course of conduct which required MassHealth to continue to litigate its entitlement to the lien, which was already established by the Probate Court, and seek the other parties' satisfaction of that lien was 'wholly insubstantial, frivolous and not advanced in good faith.'" Whatever the validity of that finding as to the particular claims Costantino asserted that were adverse to MassHealth's interests, the judge did not invoke and apparently did not apply the correct legal standard for an award against Costantino, which was whether "all or substantially all of the claims" asserted by Costantino were wholly insubstantial, frivolous, and not advanced in good faith. See G. L. c. 231, § 6F.
They were not. Although Costantino was unsuccessful on counts one and four of his amended complaint, which essentially sought to escape liability for satisfaction of the MassHealth lien at issue, he succeeded on counts six and seven, which sought declarations that Lonardo and Chapdelaine were also liable on the lien. After trial, the judge ruled that Lonardo and Chapdelaine were indeed jointly and severally liable (with Costantino) on the lien, with Chapdelaine's liability limited to the amount he received from the estate. These rulings essentially agreed with MassHealth's position. Lonardo and Chapdelaine did not appeal from the judgment as to their liability, and nothing said in the panel's summary decision pursuant to rule 1:28 in Costantino's prior appeal, Costantino, 95 Mass.App.Ct. 1121, called into question the rulings in Costantino's and MassHealth's favor.
Where "[t]he trial judge ruled in [Costantino's] favor on [two of his] principal claims ... it cannot be said that [his] position . . . was 'wholly insubstantial' or 'frivolous.'" Strand v. Hubbard, 27 Mass.App.Ct. 684, 686 (1989) . See Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 782 (1986) (no abuse of discretion in denying § 6F fees where plaintiff's "misconduct [was] clearly reprehensible" but did "not appear to have permeated 'substantially all' of [its] claims"). Here, the judge's failure to address whether all or substantially all of Costantino's claims met the § 6F standard was an error of law, and that error extended to the single justice's decision affirming the § 6F award. A remand for application of the "all or substantially all" test is unnecessary; it is apparent as a matter of law that the result would be favorable to Costantino and that MassHealth is not entitled to § 6F fees.
But see Hahn v. Planning Bd. of Stoughton, 403 Mass. 332, 335-336 (1988) (affirming award of § 6F fees for defending against plaintiff's motion for leave to amend complaint).
2. § 4 4 award.
Section 44 provides in pertinent part: "[i]f any person violates the provisions of this chapter [118E], the attorney general or a district attorney may bring a civil action, either in lieu of or in addition to a criminal prosecution, and recover three times the amount of damages sustained including the costs of investigation and litigation." We must first consider whether Costantino's appeal from the § 44 award against him is properly before us; concluding in these unusual circumstances that it is, we determine that the award was erroneous.
a. Jurisdiction.
The § 44 award, together with the § 6F award, was set forth in a judgment of the Superior Court, and we see no reason not to treat that judgment as a final judgment appealable under G. L. c. 231, § 113, to this court. Ordinarily, an appeal from a final judgment is decided by a panel of three justices of this court. See G. L. c. 211A, § 3. The appeal from the § 6F award, however, notwithstanding that it was included in the judgment, was subject to the more specific requirement of § 6G that it be heard by a single justice of this court. See G. L. c. 231, § 6G.
In Bailey v. Shriberg, 31 Mass.App.Ct. 277 (1991), the court considered the difficulties that may result from this feature of § 6G and concluded as follows:
"[T]he statute contemplates two separate appeals, one from the judgment, which goes to a panel of this court or the Supreme Judicial Court, and one from the award of attorney's fees under § 6F, which follows the [single justice] route described above. The fact that the order under § 6F is included in the judgment, or the fact that § 6F furnishes one of several bases for the award of attorney's fees, the rest of which are reviewable by a panel, does not obviate the necessity for separate appeals."Id. at 282-283. Further, recognizing that the requirement for separate appeals had not previously been clear, the Bailey court prescribed a procedure to be followed prospectively:
"In the future, in a situation where a § 6F order is incorporated in a final judgment rather than in a separate order, and a single appeal is filed which does not specify that it is an appeal from the portion of the judgment awarding attorney's fees under § 6F, we shall treat it only as an appeal to a panel from those portions of the judgment that are within the panel's jurisdiction (i.e., the portions other than the award of attorney's fees under § 6F). A party who seeks appellate review both of the judgment and of an award of attorney's fees under § 6F will be required to file two notices of appeal, which should result in two separate assemblies of the record."Id. at 284. See Troy Indus., Inc. v. Samson Mfg. Corp., 76 Mass.App.Ct. 575, 583-584 (2010).
Here, Costantino filed a single notice of appeal from the judgment incorporating the § 6F and § 44 awards, and the notice did not specify the portion of the judgment of which he sought review. Under Bailey, therefore, the notice should have been treated "as an appeal to a panel from those portions of the judgment that are within the panel's jurisdiction," Bailey, 31 Mass.App.Ct. at 284, which in this instance was the § 44 award.
The notice, filed nine days after the entry of the judgment, was thus necessarily filed "within ten days after receiving notice of the decision," as § 6G requires. The notice was also filed within the sixty-day appeal period applicable to final judgments in cases where a State agency is a party, which would include a case in which MassHealth asserts a § 44 claim. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019).
Through no fault of Costantino's, however, that is not what occurred. Instead, on December 11, 2019, the Superior Court clerk prepared and transmitted to this court an entry statement that referred to the notice of appeal as having been filed in connection with § 6F. The clerk also transmitted "the [§ 6F] motion, the court's findings and award, and . . . other documents relevant to the [§ 6F] appeal," as § 6G requires in appeals that it governs. G. L. c. 231, § 6G. See Bailey, 31 Mass.App.Ct. at 284 n.8. This further marked the appeal as directed to the single justice under § 6G. Had the appeal been understood to concern the § 44 award, the clerk would have transmitted only the limited set of procedural documents required by Mass. R. A. P. 9 (e) (2), as appearing in 481 Mass. 1617 (2019), and Costantino would have been responsible for filing a record appendix including all documents relevant to the issues on appeal, the parties would have filed briefs, and a panel of this court would have decided the appeal. See Mass. R. A. P. 18 (a), as appearing in 481 Mass. 1637 (2019).
Understanding the appeal to arise under § 6G, however, on December 13, 2019, the clerk of this court entered the appeal as case number 2019-J-0580 on the single justice docket "pursuant to M. G. L. c. 231, § 6G." This occurred without any action by Costantino; "[a]ppeals pursuant to § 6G are entered automatically onto the court's docket and no fee [was] due." Lowell v. Talcott, 86 Mass.App.Ct. 145, 153 n.9 (2014). The matter was then referred to the single justice "for speedy decision," G. L. c. 231, § 6G, and four days later, on December 17, 2019, without any further filing by Costantino, the single justice issued her decision, addressing only the § 6F award. Costantino then appealed that decision to this panel. The Superior Court clerk never assembled the record for the § 44 appeal.
That mistaken treatment of Costantino's notice of appeal resulted in the appeal being diverted to the single justice instead of coming to a panel of this court in the first instance. In the circumstances, we think it would be unfair to Costantino to deprive him of the review of the § 44 award to which his timely notice of appeal from the Superior Court judgment entitled him.
We reject MassHealth's argument that Costantino forfeited his opportunity to obtain review of the § 44 award by not raising it in the appeal from the judgment on the merits. See Costantino, 95 Mass.App.Ct. 1121. That judgment was entered, and Costantino's notice of appeal from it was filed in mid-2017, eight months before the judge ordered the § 44 award.
Nor is it clear that Costantino's filing of only a single, generally phrased notice of appeal meant that the single justice had no jurisdiction of the § 6F appeal. If that were the inescapable rule, then the Bailey court, similarly confronted with a single notice of appeal, would not have exercised its discretion to transfer the § 6F appeal to the single justice for resolution. See Bailey, 31 Mass.App.Ct. at 283-285. Accordingly, while the matter is not free from doubt, we have reviewed the merits of the single justice's § 6G decision.
b. Merits of the § 44 award.
MassHealth's entitlement to a § 44 award depended on establishing that Costantino had "violate[d] the provisions of this chapter [118E]." G. L. c. 118E, § 44. The judge's decision on MassHealth's request for fees under § 44 did not identify any particular provision of chapter 118E that Costantino had violated. The most it said is that Costantino (as well as Lonardo) had "violated G. L. c. 118E by purposefully failing to notify MassHealth of the transfer of the property which at the time of the transfer was owned by [Michelina] Lonardo's estate and Costantino as tenants in common." On appeal, MassHealth asserts more specifically that Costantino's conduct in this regard violated G. L. c. 118E, § 32 (a) .
That provision states in pertinent part as follows:
"Notwithstanding any provision of law to the contrary, a petition for admission to probate of a decedent's will or
for administration of a decedent's estate shall include a sworn statement that copies of said petition and death certificate have been sent to [MassHealth] by certified mail in accordance with sections 3-306(f) and 3-403(f) of chapter 190B. . . .
In the event a petitioner fails to send copies of the petition and death certificate to the division and the decedent received medical assistance for which the division is authorized to recover under section thirty-one, any person receiving a distribution of assets from the decedent's estate shall be liable to the division to the extent of such distribution."G. L. c. 118E, § 32 (a.) . This language imposes obligations on the petitioner, who the judge found in this case was John Lonardo, to provide MassHealth with copies of the petition and death certificate. Although the judge found that the petition was filed "with funding provided by Costantino," she also found that Costantino, an attorney, did not have malpractice insurance at that time and so did not want his name to be on the petition.
Even assuming a failure to forward copies of the petition or death certificate could amount to a violation of G. L. c. 118E supporting a request for fees, rather than merely subjecting those receiving a distribution of assets from the decedent's estate to possible liability, MassHealth faces another hurdle. MassHealth has not explained, nor is it readily apparent, how Costantino, who was neither the petitioner nor appearing as the petitioner's attorney in the estate administration proceeding, violated the statute by not providing those documents to MassHealth. Costantino may well have had an opportunity to advise Lonardo to provide such documents to MassHealth, or an opportunity to provide the documents himself, and he may well have decided not to do so because he thought that providing them would have been contrary to his own financial interest. But on this record and the arguments presented by MassHealth, the record does not show that Costantino violated G. L. c. 118E, § 32 (a.), much less that the judge found that he had done so. Accordingly, the § 44 award against Costantino cannot stand.
We therefore need not address Costantino's other arguments as to why the § 44 award was erroneous, including that MassHealth never filed a "civil action" as § 44 envisions, or a counterclaim in this action, but merely raised § 44 as an afterthought to its § 6F motion.
Conclusion.
The order of the single justice affirming the § 6F portion of the judgment entered on February 9, 2018, in the Superior Court against Costantino is vacated, and a new order is to enter reversing that judgment as to Costantino. So much of that same judgment awarding investigation costs against Costantino under § 44 is reversed.
Lonardo and Chapdelaine not having appealed, the judgment against them for fees and costs remains undisturbed.
So ordered.
The panelists are listed in order of seniority.